Airbnb use held to be consistent with covenant restricting property to residential use

/ Condominiums and Homeowners Associations, Consumer Protection, Servitudes

Courts have divided on the question of whether short-term rentals violate restrictive covenants limiting land to residential purposes. The Texas Supreme Court just joined the majority that hold that use of property for Airbnb and similar short term rentals is residential use consistent with the covenant. Tarr v. Timberwood Park Owners Ass’n, 2018 Tex. LEXIS 442 (Tex 2018). But see Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) (finding short-terms rentals to be closer to hotel use and thus commercial in nature).

Section 8 (housing voucher) tenants cannot be evicted without cause even if their lease term has expired and the landlord has opted out of the housing assistance program

/ Consumer Protection, Homelessness, Leaseholds, Real Estate Transactions, Restraints on Alienation

The Third Circuit has ruled that the federal statute, 42 U.S.C. §1437f(t)(1)(B), that gives Section 8 (housing voucher) tenants the right to “remain in their housing developments, even after their landlord has opted out of the federal housing assistance program,” gives them the right to stay unless just cause can be shown to evict have the right to remain even if the lease term has expired. Hayes v. Harvey, 2018 U.S. App. LEXIS 24848 (3d Cir. 2018).

Seventh Circuit holds that the Fair Housing Act prohibits discrimination based on sexual orientation

/ Antidiscrimination Law, Concurrent or Common Ownership, Fair Housing Act, Gender Identity, Sexual Orientation

Extending a former precedent concerning employment discrimination, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), a three judge panel of the Seventh Circuit has held that discrimination based on sexual orientation in housing is a form of sex discrimination prohibited by the Fair Housing Act. Wetzel v. Glen St. Andrew Living Community, LLC, 2018 U.S. App. LEXIS 24193 (7th Cir. 2018). The case involves a continuing care retirement community which failed to protect one of its residents from harassment by other residents directed at her because she is a lesbian. The court held that a landlord is liable for tenant-on-tenant harassment when it has actual notice of it but chooses not to take any reasonable steps to stop that harassment. Harassment is outlawed if it is severe or pervasive and that is the case where the harassment objectively interferes with teh enjoyment of the premises …

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Permanent rights of refusal for tenancy in common interests owned by family members held void as unreasonable restraints on alienation

/ Concurrent or Common Ownership, Estates and Future Interests, Restraints on Alienation

A Massachusetts court has held that permanent rights of refusal applying to tenancy-in-common interests were void as unreasonable restraints on alienation. DiSchino v. Delanson Circle Holding, 2018 Mass. Super. LEXIS 67 (Mass. Super. Ct. 2018). The court noted that the state had a strong policy against unreasonably long restrictions on the alienability of land but that reasonable restraints are valid and enforceable. Rights of first refusal are not unreasonable if they are not for a fixed price or a long period. Here, however, the rights of first refusal owned by co-owners existed in perpetuity. That meant that even after an interest was transferred to another owner, it would remain subject to the right of first refusal whenever that new owner decided to sell the owner’s interest. The permanency of the restraint on alienation (it would effectively last forever) doomed it. In contrast, a restraint on partition of tenancy-in-common interests might …

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Reduction in property value held not sufficient to give an abutting neighbor standing to challenge a zoning decision to allow a group home for veterans to be created

/ Zoning

Massachusetts law allows abutters to challenge zoning permit decisions only if they can show that they are affected by those decisions. In Walsh v. Town of Dennis Planning Bd.,26 LCR 89, 2018 Mass. LCR LEXIS 24 (Mass. Land Ct. 2018), the court clarified that the abutter needs to show harm to use of enjoyment of land and that a mere claimed reduction in fair market value is not sufficient to grant standing to challenge a zoning decision granting a special permit. The court’s ruling was based on an interpretation of the town’s by-law, suggesting that the result might be different if municipal or state law provided otherwise.

Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

/ Adverse Possession, Concurrent or Common Ownership, Easements, Trespass

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the joint property of both neighbors and cannot be removed with the consent of both of them.

Lease cannot transfer landlord’s right to receive rents to his daughter after his death because it is a testamentary transfer that does not comply with the formalities needed to create a will

/ Leaseholds, Wills and Inheritance

The MIssissippi Supreme Court held that a lease provision cannot transfer the landlord’s power to receive rents to his daughter after his death because that effectuates a testamentary transfer that must comply with the statute of wills to be valid, including all formalities such as two witnesses. Estate of Greer v. Ball, 218 So. 3d 1136 (Miss. 2017).

Commercial landlord can mitigate damages by selling the property rather than reletting it

/ Leaseholds

When the tenant breached the lease, the landlord had a duty to mitigate damages. That usually means making reasonable efforts to find a replacement tenant. However, the Nebraska Supreme Court has held that a commerical landlord fulfilled the duty to mitigate damages by seeking to sell the property rather than re-rent it. Hand Cut Steaks Acquisitions, Inc. v. Lone Star Steakhouse & Saloon of Nebraska, Inc., 905 N.W.2d 644 (Neb. 2018). The landlord’s rejection of offers to rent the property did not violate his duty to mitigate damages given his reasonable efforts to sell the property. That meant the old tenant was liable for the rents up until the property was sold.

Is it an unconstitutional taking of property without just compensation to require sex offenders to move away from their home if a school, playground, or daycare center is established near their home after their initial occupation?

/ Consumer Protection, Estates and Future Interests, Homelessness, Takings

In Mann v. Georgia Department of Corrections,653 S.E.2d 740 (Ga. 2007), the Georgia Supreme Court held that a state statute prohibiting registered sex offenders from living or working within 1,000 feet of any facility where minors congregate, see Ga. Code Åò42-1-15, constituted a taking of property as applied to a sex offender who was forced to move after a child care center opened a facility within 1,000 feet of his home. The court noted that “it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected.” 653 S.E.2d at 755. Moreover, the effect of the statute “is to mandate appellant’s immediate physical removal from his . . . residence.” The court noted “the strong governmental interests that are advanced by the residency restriction” on sex offenders, but also found that the law effectively allowed “private third parties” …

Is it an unconstitutional taking of property without just compensation to require sex offenders to move away from their home if a school, playground, or daycare center is established near their home after their initial occupation? Read More »

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